Recruitment & Pupillage

Making waves – Alexander and Di-Benedetto: “eking out” s.2 points with further information now permissible

This morning the long-awaited judgment in Alexander v France and Di Benedetto v Italy [2017] EWHC 1392 (Admin) was handed down. On 14 February 2017, Irwin LJ and Sweeney J heard extensive argument on whether further information could “eke out” mandatory particulars of a European Arrest Warrant in compliance with s.2 of the Extradition Act 2003. In the words of their Lordships, there has been “sea-change” in the law since Dabas v High Court of Justice, Madrid [2007] 2 AC 31 and King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1. An EAW’s validity can now properly be described as a “transient state”, contrary to Lord Sumption’s much quoted finding in Zakrzewski v Regional Court in Lodz, Poland [2013] 1 WLR 324.

In Mr Alexander’s case, the Appellant argued for the first time on appeal, that the EAW contained insufficient particulars of the Appellant’s conduct, and of the time and place of the offences pursuant to s.2(4)(c) of the Act. The Appellant argued that the further information (supplied on appeal) could not relied upon to fill the lacunae. In Mr Di Benedetto’s case, the Appellant’s surrender was sought pursuant to two offences. However, the EAW only provided one maximum sentence. Further information was obtained at Westminster Magistrates’ Court detailing the maximum sentence for the second offence. The Appellant argued that the EAW was not compliant with s.2(4)(d) of the Act and that the further information could not supplement the warrant to cure the defect

Their Lordships considered the recent Supreme Court judgment in Goluchowski v District Court in Elblag, Poland [2016] 1 WLR 2665 which applied the CJEU case of Bob-Dogi [2016] 1 WLR 4583 (Case C-241/15). The CJEU in Bob-Dogi made clear that executing authorities must use the Article 15(2) (Framework Decision 2002/584/JHA) procedure to seek further information to supplement a warrant which does not have sufficient particulars for Article 8(1)(c) FD (which s.2 of the Act implements) (paras. 64-65). The Supreme Court in Goluchowski considered whether the details of the activation of suspended sentences and other post-conviction decisions were necessary for s.2(6)(c) and (e) of the Act and whether further information could be used to cure any defects. Lord Mance held that whilst those particulars should strictly have been in the EAW, the Article 15 procedure should be used to fill in “formal” rather than “substantive” defects (para. 45). Lord Mance’s opaque distinction and it’s application was the subject of considerable debate in Alexander and Di Benedetto as shown below.

The Court conclude with a bold new statement of law:

“73…the previous approach to the requirements of an EAW and the role of further information must be taken no longer to apply. The formality of Lord Hope’s approach in Cando Armas, based on the wording of the Act, has not survived. It is clearly open to a requesting judicial authority to add missing information to a deficient EAW so as to establish the validity of the warrant” (para. 73).

74. We do not see an easy distinction, in practice, between “formal” and “substantive” requirements of an EAW, despite the remarks of Lord Mance in paragraph 45 of Goluchowski. An EAW requires certain specified information. If that information is not forthcoming, then extradition cannot lawfully be ordered. Are the date, place and nature of the offence, and the question of maximum sentence, to be regarded as “formal” or “substantive” matters? They are required matters. The effect of the two key recent decisions is, we conclude, that missing required matters may be supplied by way of further information and so provide a lawful basis for extradition”.

The old principles on s.2 from Dabas and Cando Armas are clearly over-ruled. Clearly this judgment will have a profound affect on the success of any s.2 arguments. Further information can now be relied upon where any class of s.2 defect is perceived and where there are numerous defects. The Court’s assurance that “There is no question that ‘any old bit of paper’ will suffice as an EAW” (para. 75) may not be much comfort to Requested Persons. However, the Court do stress the responsibility of both advocates and the judges at Westminster to spot deficiencies early so that requests for further information can be made speedily. The only questions that remain are how tolerant Westminster will be of applications to adjourn awaiting that further information and whether further information sought on appeal will be admitted where the issue was raised at first instance.